Opinion
No. 05-02-00506-CR
Opinion Filed July 7, 2003 Do Not Publish
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F98-43475-N. Affirmed
MEMORANDUM OPINION
The trial court granted the State's motion to revoke Lejohnathan Edtas Cox's community supervision and to adjudicate his guilt for aggravated robbery. The trial court found appellant guilty and assessed a thirty year sentence. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978). Appellant filed a pro se response in which he concedes he violated conditions of his community supervision, but asks this Court to take notice of his completing the Dallas County Jail Chemical Dependency Program. Appellant complains the "Judgment should reflect nunc pro tunc time served" and argues he was placed in jeopardy, denied due process, and prosecuted under a defective indictment. Additionally, he complains no evidence existed to support his conviction and the court did not follow the plea bargain agreement. Appellant entered a negotiated guilty plea to aggravated robbery on August 31, 1998. The trial court followed the plea bargain agreement, found the evidence supported his guilt including the use of a deadly weapon, deferred finding him guilty, and placed him on community supervision for five years. Subsequently, the State moved to proceed to adjudication of guilt on the aggravated robbery and to revoke probation in a previous case involving possession of a prohibited weapon. Appellant pleaded true to several of the State's allegations in both of its motions without benefit of a plea bargain agreement. Because appellant received deferred adjudication pursuant to a plea bargain, his notice of appeal on the trial court's adjudicating guilt had to state the appeal was for a jurisdictional defect, a matter raised by written motion and ruled on before trial, or that the trial court gave permission to appeal. See Tex.R.App.P. 25.2(b)(3) (former rule). Appellant initially filed a notice of appeal that did not meet the requirements of former rule 25.2(b)(3). However, appellant timely filed an amended notice of appeal. See Brown v. State, 53 S.W.2d 734, 738 (Tex.App.-Dallas 2001, pet. ref'd) (holding appellant may file amended notice of appeal within time frame prescribed by rule 26.2 of the rules of appellate procedure). The amended notice of appeal asserted a jurisdictional defect. Therefore, the amended notice complies in form with former rule 25.2(b)(3). Id. This Court has previously held that in cases where rule 25.2(b)(3) applies, a notice of appeal must comply, both in form and substance, with the requirements of rule 25.2(b)(3). Sherman v. State, 12 S.W.3d 489, 492 (Tex.App.-Dallas 1999, no pet.). Without such compliance, this Court's jurisdiction is not properly invoked. Id.; see also White v. State, 61 S.W.3d 424, 429 (Tex.Crim.App. 2001). In the Anders brief, appellant's counsel concedes there are "no jurisdictional defects." We have examined the record in this case and conclude the trial court properly exercised jurisdiction over this case. We conclude the record does not support the statement in appellant's amended notice of appeal. Therefore, appellant's amended notice does not comply in substance with former rule 25.2(b)(3). Consequently, we have no jurisdiction to consider the grounds advanced in appellant's response, save one. In his response, appellant complains the judgment "should reflect nunc pro tunc time served." Appellant makes no further argument regarding the amount of credit he should receive towards his sentence. The issue of whether a defendant has been credited with the proper amount of "back time" is an issue unrelated to conviction. Therefore, we have jurisdiction to address the issue. See generally Viduarri v. State, 49 S.W.3d 880, 885 (Tex.Crim.App. 2001). Here, the trial court's judgment credits appellant for "back time," and appellant makes no argument showing the judgment is incorrect. Therefore, appellant presents no arguable point of error concerning the amount of credit to be applied towards his sentence. We have reviewed the record, counsel's brief, and appellant's response. We conclude the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment
Appellant contends the trial court violated his plea bargain agreement in trial court cause number F96-47511-N. An appeal from the trial court's judgment in that cause is before this Court as cause number 05-02-00507-CR. In that appeal, appellant's attorney did not advance the argument that the trial court violated appellant's plea bargain agreement. Because this complaint does not apply to this appeal, we do no address it herein.
Rule 25.2(b) was amended to delete the provisions of subsection (b)(3), effective January 1, 2003. Because appellant filed his notices of appeal before January 1, 2003, we apply former rule 25.2(b)(3), which was in effect at the time appellant filed his notices of appeal.